Bishop Kurtz noticed that Judge Joseph Tauro gave himself away when he remarked that “irrational prejudice plainly never constitutes a legitimate government interest.” The Judge was dismissing the notion that the government has a significant interest in privileging marriage between a man and a woman. Judge Tauro failed to see that the permanent union of a man and a woman in order to have children and raise them in a stable family constitutes an institution on which the State, like all of society, directly depends.

Such blindness is very common in our culture today, but it is fairly clearly a willful blindness, a blindness born of a fear that if we find a reason to downgrade any person’s sexual urges it will lead ultimately to the elimination of even our own sexual indulgence and irresponsibility. A sexually libertine society can preserve itself (temporarily) only by refusing to recognize the obvious connections between sex and reproduction, marriage and childbirth, family life and social stability. These are precisely the connections which give government a compelling interest in protecting and promoting marriage as a key pre-existing natural institution.

But Judge Tauro has ruled that because the individual states have the right to define marriage, and since some states have defined marriage to include same-sex partners, therefore it is wrong for the Federal government, through the Defense of Marriage Act, to prohibit the expenditure of funds to benefit same-sex partners. This, of course, is merely judicial sleight of hand. For simply because the several states have the Constitutional power to regulate marriage, including the civil responsibilities and benefits which apply to those who enter into marriage, it does not at all follow that a state has a right to define marriage, any more than it has the right to determine what constitutes a star, a horse or a human being.

Some realities—indeed, all realities except for purely legal constructions—are logically prior to the existence of government. With respect to these realities, government has two choices. It can recognize them and regulate their use in accordance with their nature, or it can attempt to ignore or even abolish reality in favor of fictions created by legal imagination. In this context, it is hardly surprising that the doctrine of legal positivism is so widespread in American jurisprudence today, for legal positivism holds frankly that reality is what the law declares it to be. It is yet another offspring of philosophical relativism, which requires states to create social frameworks out of whole cloth because they cannot (or do not wish to) agree on any foundational truths. In an atmosphere of relativism, the will of the strong prevails through legal positivism. The results are always and inevitably totalitarian; they are particularly hard on those who cherish truth over against cultural orthodoxy.

The vision of the world desired by those in power (yesterday I described this simply as “fashion”) trumps everything else whenever reality is up for grabs. Such a vision will always be shaped by ego, vice and passion. In contrast, it takes a willingness to curtail both pride and inordinate attachments to be schooled by reality. And if we will not be schooled by it, we have no recourse but to deny it. Thus our culture and our people are in deep denial, with all the willful ignorance this implies:

With them indeed is fulfilled the prophecy of Isaiah which says: “You shall indeed hear but never understand, and you shall indeed see but never perceive. For this people's heart has grown dull, and their ears are heavy of hearing, and their eyes they have closed, lest they should perceive with their eyes, and hear with their ears, and understand with their heart, and turn for me to heal them.” (Mt 13:14-15)

Jeffrey Mirus holds a Ph.D. in intellectual history from Princeton University. A co-founder of Christendom College, he also pioneered Catholic Internet services. He is the founder of Trinity Communications and CatholicCulture.org. See full bio.

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